PROPOSED AMENDMENTS TO CIVIL RULE 26(c ......The proposed amendments to Rule 26 of the Federal Rules of Civil Procedure, as recommended by your committee, are in Appendix B. Recommendation:

PROPOSED AMENDMENTS TO CIVIL RULE 26(c)

FACILITATING USE OF PROTECTIVE ORDERS

Civil Rules Committee

(March 1995)

Agenda F-19 (Summary)RulesMarch 1995

SUMMARY OF THE

REPORT OF THE JUDICIAL CONFERENCE

COMMIrFEE ON RULES OF PRACTICE AND PROCEDURE

The Committee on Rules of Practice and Procedure recommends that theJudicial Conference:

1. Approve the proposed amendments to Official Bankruptcy Forms 1, 3,6, 7, 8, 9A, 9C, 9D, 9E, 9E(Alt.), 9F, 9F(Alt.), 9G, 9H, 91, 10, 16A, 16B,16C, 17, and 18 and the adoption of new Official Bankruptcy Forms16D and 19 ............................................ pp. 4-52. Approve proposed amendments to Civil Rule 26 and transmit them tothe Supreme Court for its consideration with the recommendation

that they be adopted by the Court and transmitted to Congress inaccordance with the law . ................................. pp. 6-8

3. Recommend to Congress that it delete the service provisions in 46U.S.C. § 742 ....... pp. 9-104. Oppose legislation regulating the composition of committees

constituted to advise the Judicial Conference and the Chief Justiceof the United States ................................... pp. 13-14

The remainder of the report is for information and the record.

NOTICENO RECOMMENDATION PRESENTED HEREIN REPRESENTS THE POLICY OF THE JUDICIAL

CONFERENCE UNLESS APPROVED BY THE CONFERENCE ITSELF.

Agenda F-19RulesMarch 1995

REPORT OF THE JUDICIAL CONFERENCECOMMITTEE ON RULES OF PRACTICE AND PROCEDURE

TO THE CHIEF JUSTICE OF THE UNITED STATES AND MEMBERS OF THEJUDICIAL CONFERENCE OF THE UNITED STATES:

Your Committee on Rules of Practice and Procedure met on January 11-13,1995. All members of the committee attended the meeting.

Representing the advisory committees were: Judge James K. Logan, Chair,and Professor Carol Ann Mooney, Reporter, of the Advisory Committee onAppellate Rules; Judge Paul Mannes, Chair, and Professor Alan N. Resnick,Reporter, of the Advisory Committee on Bankruptcy Rules; Judge Patrick-E.

Higginbotham, Chair, and Professor Edward H. Cooper, Reporter, of the AdvisoryCommittee on Civil Rules; Judge D. Lowell Jensen, Chair, and Professor David A.Schlueter, Reporter, of the Advisory Committee on Criminal Rules; Judge Ralph KWinter, Jr., Chair, and Professor Margaret A. Berger, Reporter, of the AdvisoryCommittee on Evidence Rules.

Participating in the meeting were Peter G. McCabe, Secretary to theCommittee; Professor Daniel R. Coquillette, Reporter to the Committee; John K.Rabiej, Chief, and Mark D. Shapiro, attorney, of the Administrative Office's Rules

NOTICENO RECOMMENDATION PRESENTED HEREIN REPRESENTS THE POLICY OF THE JUDICIALCONFERENCE UNLESS APPROVED BY THE CONFERENCE ITSELF.

Committee Support Office; Professor Mary P. Squiers, Director of the Local Rules

Project; Bryan A. Garner and Joseph F. Spaniol, consultants to the Committee.

Geoffrey M. Klineberg of the Department of Justice and William B. Eldridge of the

Federal Judicial Center attended the meeting. Members of the public were present

at the meeting as observers.

I. AMENDMENTS TO THE

FEDERAL RULES OF APPELLATE PROCEDURE

In addition to reviewing comments submitted on proposed amendments to

Appellate Rules 21, 25, 26, 27, 28, 29, and 32, published for public comment on

September 1, 1994, the advisory committee is in various stages of considering other

proposed amendments.

Style Revisions

At its October meeting the advisory committee reviewed Appellate Rules 1

through 23 that were revised by your committee's subcommittee on style. The

revisions are part of a comprehensive effort to clarify and simplify all rules of

practice and procedure. The advisory committee reviewed the proposed style

changes for accuracy and determined whether any unintended substantive changes

were made. It made further improvements to the stylized appellate rules.

The advisory committee recognized that some of the changes may implicate

substantive questions and that other changes were needed to eliminate ambiguities

in the existing rules. These changes, by their nature, involve decisions beyond

"style" and will be specifically identified in the committee notes to the rules for

2

III. AMENDMENTS TO THE

FEDERAL, RULES OF CIVIL PROCEDURE

The advisory committee is reviewing comments submitted on proposed

amendments to Civil Rule 5 published for public comment on September 1, 1994.

It is also studying several other proposed amendments.

A. Rules Recommended for Approval and Transmission

The Advisory Committee on Civil Rules submitted to your committee

proposed amendments to Civil Rules 26 and 43. The proposed amendments were

circulated to the bench and bar in October 1993, and a public hearing was held

immediately before the committee's meeting in April 1994.

Amended Rule 26(c) grew out of a cooperative process in which the advisory

committee sought to respond to concerns expressed by Congress in a number of

legislative proposals. Many members of Congress have feared that protective orders

may conceal information that could protect against ongoing risks to public health

and safety. The advisory committee sought to adapt Rule 26(c) to meet this

concern squarely, without imposing onerous procedural requirements that might

weaken the benefits of protective orders in litigation over issues that do not involve

any risk to public health or safety.

The approach chosen by the committee in new Rule 26(c)(3) was to make it

clear that protective orders may be modified or dissolved - on motion by 'a party, a

person bound by the order, or a person permitted to intervene for this purpose - for

any appropriate reason, The rule includes a list of illustrative factors to be

6

considered, including any risk to public health or safety. It is believed that the

amended rule meets the concerns expressed in Congress.

Amendments to rules are normally transmitted to the Judicial Conference at

its Fall session, rather than the Spring session, to provide the Supreme Court with

adequate time to review them by the annual May 1 statutory deadline. Your

committee concluded that transmission of amendments to Rule 26 to the Court now

is appropriate because of Congressional concerns over-further delay. If the

amendment is transmitted to the Court after the Fall Conference session, it would

take effect no earlier than December 1, 1996 - rather than December 1, 1995, if

approved now.

Your committee approved the proposed amendments to Rule 26 for approval

and transmission to the Judicial Conference with a recommendation that the

Conference transmit them immediately to the Supreme Court.

The proposed amendments to Rule 43 make two changes. The first makes itclear that a witness who testifies in open court need not testify "orally" if the

witness is able to communicate only by other means, such as signing or writing.

The second permits contemporaneous transmission of testimony from a different

location, but only when good cause is shown in compelling circumstances, and onlyupon appropriate safeguards. The Committee Note emphasizes that live testimony

in open court is strongly preferred. Your committee approved the proposed

amendments to Rule 43, but decided to delay transmitting them to the Judicial

Conference until its Fall session.

7

The proposed amendments to Rule 26 of the Federal Rules of Civil

Procedure, as recommended by your committee, are in Appendix B.

Recommendation: That the Judicial Conference approve proposedamendments to Civil Rule 26 and transmit them to the Supreme Courtfor its consideration with the recommendation that they be adopted bythe Court and transmitted to Congress in accordance with the law.

B. Rules Submitted for Publication and Comment

The advisory committee also submitted proposed amendments to Civil Rules

47 and 48 to your committee, and recommended that they be published for comment.

Rule-47 (Selection of Jurors) would be amended to establish a limited right of

party participation in the examination of prospective jurors. The advisory

committee recognized the abuses of voir dire that occur in some state courts that

allow attorney participation in voir dire. The committee believes that the proposed

amendments contain adequate safeguards against such abuses.

The proposed amendments would explicitly state that the court must conduct

the examination of prospective jurors. The parties would be restricted to

supplement the court's examination "within reasonable limits of time, manner, and

subject matter set by the court in its discretion."

It is expected that with adequate voir dire by the trial judge, lawyers will

seldom need to ask many additional questions. If extensive or improper questions

are attempted, effective control can be exercised by the court. The abuse of

discretion standard would apply to appellate review of a trial judge's decision to

limit attorney questioning.

8

Your committee decided to defer further consideration of the proposed

amendments to Civil Rule 47 to allow the Advisory Committee on Criminal Rules to

complete its consideration of similar amendments to Criminal Rule 24 regarding

selection of jurors in criminal cases.

Rule 48 (Number of Jurors - Participation in Verdict) would be amended to

require a twelve-person jury in all civil cases, in the absence of a Stipulation by

counsel. The advisory committee reviewed many scholarly studies of the subject,

virtually all critical of six-person juries. Perhaps the most serious deficiency of six-

person juries identified in the articles was that they are less likely than twelve-

person juries to include minority representation.

The literature also contained extensive discussions of the sociological and

psychological dynamics of jury deliberation. Proponents in the articles argue that a

twelve-person jury is superior because members of a twelve-person jury are less

likely to be dominated by an aggressive juror, better able to recall evidence, more

likely to rise above the biases and prejudices of individual members, and enriched

by a broader base of community experiences. These factors may help to explain the

further conclusion that six-person jury verdicts are more erratic.

Your committee voted to circulate next fall the proposed amendments to Rule

48 to the bench and bar for comment.

C. Suits in Admiralty Act

The advisory committee proposed that your committee recommend that the

Judicial Conference recommend to Congress that the service provisions contained in

9

the Suits in Admiralty Act, 46 U.S.C. § 742, which are different from the service

provisions in Civil Rule 4, be deleted. Section 742 requires that a party "forthwith

serve" process on the United States in admiralty cases.

"Forthwith" has been interpreted by some courts to require service within a

period much shorter than the 120-day period provided for effecting service under

Civil Rule 4(m). Some courts have further ruled that Rule 4(m) does not supersede

§ 742 because the service requirement is a condition on the United States' waiver of

sovereign immunity. Under these circumstances, the inconsistent time periods for

service of process have posed traps for inexperienced counsel and caused loss of

rights for their clients.

The Government voiced no objection to the proposal. Section 742 was

enacted before the Civil Rules were adopted, and there is no apparent remaining

reason to treat suits in admiralty different from other civil actions. Your

committee concurred in the recommendation to delete the inconsistent service of

process provision in § 742.

Recommendation: That the Judicial Conference recommend toCongress that it amend 46 U.S.C. § 742 by deleting its serviceprovisions.

D. Decisions Not to Amend Certain Rules

The advisory committee has been studying at length possible amendments to

Rule 53 (Masters). At its October 1994 meeting the committee ultimately

concluded that the need to clarify the courts' practices regarding masters was not

sufficient to require amendment of the rule at this time. The committee also has

10

PROPOSED AMENDMENTS TORULES OF CIVIL PROCEDURE*

Rule 26. General Provisions GoverningDiscovery; Duty of Disclosure

1 (c) Protective Orders.(l) UpWe On motion by a

2 party or by the person from whom discovery is

3 sought, accompanied by a certification that the

4 movant has in good faith conferred or attempted to

5 confer with other affected parties in an effort to

6 resolve the dispute without court action, and for geed

7 eCmUe shewa, the court in which where the action is

8 pending er- and alerniatively, on matters relating

9 to a deposition, also the court in the district where

10 the deposition is-te will be taken = may for good

11 cause shown or on stipulation of the parties, make

12 any order which that justice requires to protect a

'New matter is underlined; matter to be omittedis lined through.

2 Rules of Civil Procedure

13 party or person from annoyance, embarrassment,

14 oppression, or undue burden or expense, including

15 one or more of the following:

16 (4A) that precluding the disclosure or

17 discovery n-Rt be-had;

18 (2B) that specifving conditions. including time

19 and place. for the disclosure or discovery ma

20 be had only on spccified terms and conditions,

21 including a designation of thc time or plA.e;

22 (3C) that the dicoovcry may be had only by

23 prescribing a discovery method of diseverey

24 other than that selected by the party seeking

25 discovery;

26 (4) that excluding certain matters net be

27 inquior that, limiting the scope of the

28 disclosure or discovery be limited to certain

Rules of Civil Procedure 3

29 matters;

30 (5B) designating the persons who may be

31 present while that the discovery is be

32 conducted with no one present cxempt persons

33 designated by the court;

34 (GF) that a d-position, after being sealcd,

35 directing that a sealed deposition be opened

36 only by order oethe Upon court order;

37 (4UG) ordering that a trade secret or other

38 confidential research, development, or

39 commercial information not be revealed or be

40 revealed only in a designated way; and or

41 (SH) directing that the parties simultaneously

42 file specified documents or information

43 enclosed in sealed envelopes. to be opened as

44 direeted by the court directs.


45 (2) If the a motion for a protective order is wholly or

46 partly denied in whole or in part, the court may, on

47 sueh just terms and Aonditions a arc just, order that

48 any party or eth person provide or permit discovery

49 or disclosure. The provieions of Rule 37(a)(4)

50 applyies to the award of expenses incurred in relation

51 to the motion.

52 (3 (A) The court may modify or dissolve a protective

53 order on motion made by a party, a person bound by

54 the order, or a person who has been allowed to

55 intervene to seek modification or dissolution.

56 (B) In ruling on a motion to dissolve or modi& a

57 protective order, the court must consider. among

58 other matters, the following:

59 (V the extent of reliance on the order;


60 f(ii the public and private interests affected

61 by the order. including any risk to

62 public health or safety:

63 (iii) the movant's consent to submit to the

64 terms of the order;

65 (iv) the reasons for entering the order, and

66 any new information that bears on the

67 order, and

68 ( the burden that the order imposes on

69 Rersons seeking information relevant to

70 other litigation.

Committee Note

Subdivisions (1) and (2) are revised to conform to thestyle conventions adopted for simplifying the present rules.No change in meaning is intended by these style changes.

Subdivision (1) also is amended to confirm thecommon practice of entering a protective order on


stipulation of the parties. Stipulated orders can provide avaluable means of facilitating discovery without frequentrequests for action by the court, particularly in actions thatinvolve intensive discovery. If a stipulated protective orderthwarts important interests, relief may be sought by amotion to modify or dissolve the order under subdivision(3).

Subdivision (3) is added to the rule to dispel anydoubt whether thea power to enter a protective orderincludes power to modify or vacate the order. The power ismade explicit, and includes orders entered by stipulation ofthe parties as well as orders entered after adversary contest.The power to modify or dissolve should be exercised aftercareful consideration of the conflicting policies that shapeprotective orders. Protective orders serve vitally- importantinterests by ensuring that privacy is invaded by discoveryonly to the extent required by the needs of litigation.Protective orders entered by agreement of the parties alsocan serve the important need to facilitate discovery withoutrequiring repeated court rulings. A blanket protective ordermay encourage the exchange of information that a courtwould not order produced, or would order produced onlyunder a protective order. Parties who rely on protectiveorders in these circumstances should not risk automaticdisclosure simply because the material was once producedin discovery and someone else might want it.

Modification of a protective order may be sought toincrease the level of protection afforded as well as to reduceit. Among the grounds for increasing protection might beviolation of the order, enhanced appreciation of the extent


to which discovery threatens important interests in privacy,or the need of a nonparty to protect interests that theparties have not adequately protected.

Modification or dissolution of a protective order doesnot, without more, ensure access to the once-protectedinformation. If discovery responses have been filed with thecourt, access follows from a change of the protective orderthat permits access. If discovery responses remain in thepossession of the parties, however, the absence of aprotective order does not without more require that anyparty share the information with others.

Despite the important interests served by protectiveorders, concern has been expressed that protective orderscan thwart other interests that also are important. Twointerests have drawn special attention. One is the interestin public access to information that involves matters ofpublic concern. Information about the conduct ofgovernment officials is frequently used to illustrate an areaof public concern. The most commonly offered examplefocuses on information about dangerous products orsituations that have caused injury and may continue tocause injury until the information is widely disseminated.The other interest involves the efficient conduct of relatedlitigation, protecting adversaries of a common party fromthe need to engage in costly duplication of discovery efforts.

The first sentence of subparagraph (A) recognizesthat a motion to modify ior dissolve a protective order maybe made by a party, a person bound by the order, or aperson allowed to intervene for this purpose. A motion to


intervene for this purpose is made for the limited purposeof establishing standing to pursue the request formodification or dissolution. Intervention should be grantedif the applicant asserts an interest that justifies fullargument and consideration of the motion to modify ordissolve. Because intervention is for this limited purpose,there is no need to invoke the Rule 24 standards that wouldapply to a request to intervene as a party. Several courtshave relied on limited intervention in this setting, and theprocedure has worked well.

Subparagraph (B) lists some of the matters that mustbe considered on a motion to dissolve or modify a protectiveorder. The list is not all-inclusive; the factors that mayenter the decision are too varied even to be foreseen.

The most important form of reliance on a protectiveorder is the production of information that the court wouldnot have ordered produced without the protective order.Often this reliance will take the form of producinginformation under a blanket protective order withoutraising the objection that the information is not subject todisclosure or discovery. The information may be protectedby privilege or work-product doctrine, the outer limits ofRule 26(b)(1), or other rules. Reliance also may take otherforms, including the court's own reliance on a protectiveorder less sweeping than an order that flatly prohibitsdiscovery. If the court would not have ordered discoveryover proper objection, it should not later defeat protectionof information that need not have been produced at all.Reliance also deserves consideration in other settings, buta finding that information is properly discoverable directs


attention to the question of the terms - if any - on whichprotection should continue.

The public and private interests affected by aprotective order include all of the myriad interests thatweigh both for and against discovery. The questionwhether to modify or dissolve a protective order is, apartfrom the question of reliance, much the same as the initialdetermination whether there is good cause to enter theorder. An almost infinite variety of interests must beweighed. The public and private interests in defeatingprotection may be great or small, as may be the interests inpreserving protection. Special attention must be paid to aclaim that protection creates a risk to public health orsafety. If a protective order actually thwarts publication ofinformation that might help protect against a significantthreat of serious injury to person or property, onlycompelling reasons could justify protection. Claims ofcommercial disadvantage should be examined withparticular care. On the other hand, it is proper to demanda realistic showing that there is a need for disclosure ofprotected information. Often there is full opportunity topublicize a risk without access to protected discoveryinformation. Paradoxically, the cases that pose the mostrealistic public risk also may be the cases that involve thegreatest interests in privacy, such as a yet-to-be-provedclaim that a party is infected with a communicable disease.

Consent to submit to the terms of a protective ordermay provide strong reason to modify the order. Submissionto the terms of the order should include submission to thejurisdiction of the court to enforce the order. Submission,


however, does not establish an automatic right tomodification. The court still must balance the need foraccess to information against the interests of privacy. If theneed for access arises from pending or impending litigationof parallel claims, it may prove better to defer to theprotective order discretion of the court responsible for theother litigation, or even to work out a cooperative approachthat allows each court to consider the factors most familiarto it.

The role of the court in considering the reasons forentering the protective order is affected by the distinctionbetween contested and stipulated orders. If the order wasentered on stipulation of the parties, the motion to modifyor dissolve requires the court to consider the reasons forprotection for the first time. All of the information thatbears on the order is new to the court and must beconsidered. If the order was entered after argument,however, the court may justifiably focus attention oninformation that was not considered in entering the orderinitially.

Rule 26(c)(3) applies only to the dissolution ormodification of protective orders entered by the court undersubdivision (c)(1). It does not address private agreementsentered into by litigants that are not submitted to the courtfor its approval. Nor does Rule 26(c)(3) apply to motionsseeking to vacate or modify final judgments thatoccasionally contain restrictions on the disclosure ofspecified information. Rules 59 and 60 govern suchmotions.

Documents

PROPOSED AMENDMENTS TO CIVIL RULE 26(c ......The proposed amendments to Rule 26 of the Federal Rules of Civil Procedure, as recommended by your committee, are in Appendix B. Recommendation: